Rivera-Rivera v. PREPA ( 2021 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 20-1797
    IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO
    RICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE
    FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
    REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION
    AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR
    PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC
    POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT
    BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO
    SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL
    OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
    REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE
    GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; THE FINANCIAL
    OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
    REPRESENTATIVE OF THE PUERTO RICO PUBLIC BUILDINGS AUTHORITY,
    Debtors.
    JOSE RAMON RIVERA-RIVERA, President, Fiduciary, and Trustee of
    the Board of Trustees of the Electric Power Authority's
    Employees’ Retirement System; SISTEMA DE RETIRO DE LOS EMPLEADOS
    DE LA AUTORIDAD DE ENERGIA ELECTRICA, (SREAEE); BOARD OF
    TRUSTEES OF THE PUERTO RICO ELECTRIC POWER AUTHORITY EMPLOYEES'
    RETIREMENT SYSTEM; RALPHIE E. DOMINICCI RIVERA; ANGEL R.
    FIGUEROA-JARAMILLO; JUAN CARLOS ADROVER; SAMMY RODRIGUEZ; ALVIN
    ROMAN; ERNESTO ZAYAS LOPEZ, a/k/a Erasto Zayas Lopez,
    Plaintiffs, Appellants,
    v.
    THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
    REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE
    FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS
    REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC POWER AUTHORITY
    (PREPA); FERNANDO GIL ENSEAT; CARLOS M. YAMIN-RIVERA; ROBERT
    POE; CHARLES BAYLESS; DAVID K. OWENS; RALPH A. KREIL; GERARDO
    LORAN-BUTRON; TOMAS TORRES-PLACA; PEDRO R. PIERLUISI,
    Defendants, Appellees,
    PUERTO RICO FISCAL AGENCY AND FINANCIAL ADVISORY AUTHORITY
    Interested Party, Appellee,
    ERNESTO SGROI HERNANDEZ; RICARDO ROSSELLO NEVARES; CHRISTIAN
    SOBRINO-VEGA,
    Defendants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Laura Taylor Swain, U.S. District Judge]
    Before
    Kayatta and Barron, Circuit Judges,
    and O’Toole, Jr., District Judge.
    Guillermo J. Ramos-Luiña, with whom Rafael A. Ortiz-Mendoza,
    Rolando Emmanuelli-Jiménez, Jessica E. Méndez-Colberg, Wendloyn
    Torres-Rivera, and Bufete Emmanuelli, C.S.P. were on brief, for
    appellants.
    William J. Shushon, with whom Peter M. Friedman, John J.
    Rapisardi, and O’Melveny & Myers LLP were on brief, for interested
    party-appellee the Puerto Rico Fiscal Agency and Advisory
    Authority.
    Lary Alan Rappaport, with whom Martin J. Bienenstock, Ehud
    Barak, Mark D. Harris, Paul V. Possinger, Timothy W. Mungovan,
    John E. Roberts, and Proskauer Rose LLP were on brief, for appellee
    Fiscal Oversight and Management Board for Puerto Rico as
    representative of the Commonwealth of Puerto Rico and the Puerto
    Rico Electric Power Authority.
    Carlos Lugo-Fiol was on brief for appellee Governor of Puerto
    Rico Pedro Pierluisi.
    Katiuska Bolaños Lugo, with whom Díaz & Vázquez Law Firm,
      Of the     Southern   District   of   New   York,   sitting   by
    designation.
       Of the District of Massachusetts, sitting by designation.
    P.S.C. was on brief, for appellees Robert Poe, Charles Bayless,
    David K. Owens, Ralph A. Kreil, Gerardo Lorán-Butrón, and Tomás
    Torres-Placa.
    October 27, 2021
    BARRON, Circuit Judge.              This case concerns a request for
    declaratory relief in relation to a now-expired and formally
    rescinded executive order that the Governor of Puerto Rico issued
    in connection with the effort to address the Commonwealth's ongoing
    fiscal     crisis.        The     order,    among    other    things,     temporarily
    appointed members to the Board of Trustees of the Retirement System
    of   the    Puerto        Rican     Electric       Power     Authority    ("PREPA"),
    effectively displacing the sitting trustees for a limited purpose.
    The case was heard by the federal court established in June 2016
    by Title III of the Puerto Rico Oversight, Management, and Economic
    Stability Act ("PROMESA"), see 
    48 U.S.C. §§ 2161-2177
    , to handle
    matters relating to the debt crisis in Puerto Rico ("the Title III
    Court").     The Title III Court dismissed the complaint on the ground
    that it is moot.          We now affirm.
    I.
    The Puerto Rico Electric Power Authority Employees'
    Retirement       System    ("Retirement          System")    was   created   in   1945
    pursuant to a collective bargaining agreement between PREPA and
    the Puerto Rico Electric Industry and Irrigation Workers Union.
    The Retirement System is responsible for administering a pension
    plan for more than 12,000 retired employees of PREPA, a public
    corporation responsible for the generation and transmission of
    electricity in Puerto Rico.
    A    resolution       issued    alongside       the   1945   collective
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    bargaining agreement entrusts administration of the Retirement
    System's pension plan to a Board of Trustees.                  Pursuant to the
    Retirement System's Bylaws, three trustees are selected by PREPA
    employees,   three    trustees    are    selected      by    PREPA's       Board   of
    Directors, one trustee is elected by retired PREPA employees, and
    one serves dually as a trustee and as the Executive Director of
    PREPA.
    The Fiscal Oversight and Management Board ("FOMB") was
    created by PROMESA.         It is authorized, among other things, to
    "require . . . the      Governor        to    submit     to        the    Oversight
    Board . . . budgets . . . regarding             a      covered           territorial
    instrumentality."        
    48 U.S.C. § 2121
    (d)(1)(B).             The     FOMB
    designated PREPA as a covered entity on September 30, 2016.
    On March 22, 2018, Governor Ricardo Rosselló Nevares
    issued   Executive    Order    No.   2018-012       ("Order").           Citing    the
    Commonwealth’s       ongoing      economic          crisis     and         PROMESA’s
    acknowledgment   of   the     "Government's      failure      to    issue    audited
    financial statements since the year 2014," the Order asserted that
    "it is necessary to have the most recent, precise, updated, and
    audited financial information from PREPA, including all of the
    units that comprise it."         P.R. Exec. Order No. 2018-012, at 1
    (Mar. 22, 2018); see 
    48 U.S.C. § 2146
    (a) (setting out requirements
    regarding the FOMB's issuance of a restructuring certification for
    a covered entity); H.R. Rep. No. 114-602, pt. 1, at 47 (2016)
    - 5 -
    (providing    that    the      FOMB     "must      certify   by   an   affirmative
    vote . . . that the [covered] entity has . . . adopted procedures
    necessary to deliver timely audited financial statements").                      The
    Order’s preambulatory clauses treated the Retirement System as a
    component of PREPA and thus as a covered entity subject to the
    FOMB’s oversight.      P.R. Exec. Order No. 2018-012, at 1.              The Order
    then asserted that the Retirement System’s Board of Trustees had
    "not complied with the annual obligation imposed by [PREPA's]
    Bylaws," which the Order read as imposing on the Board of Trustees
    an "obligation to approve annually the actuarial reports and
    financial statements of the Retirement System."                   
    Id. at 2
    .      The
    Order further asserted that "certain members of said Board [of
    Trustees]    have    opted       to   not   act"    in   compliance    with   their
    obligation under PREPA’s Bylaws, which in turn "impacts directly
    PREPA’s ability to complete its financial statements" because "the
    Retirement          System's            actuarial        reports,        financial
    statements, . . . and other pertinent information . . . is part of
    PREPA’s financial statements."              
    Id.
    Section    1    of    the    Order     appointed   PREPA's   Board    of
    Directors as trustee for the Retirement System for two purposes:
    finalizing and issuing actuarial reports and financial statements
    of the Retirement System for Fiscal Year 2017, and delivering
    information to the Puerto Rico Fiscal Agency and Financial Advisory
    Authority ("AAFAF") related to the preparation of PREPA's budget
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    for Fiscal Year 2019.1        
    Id. at 4
    .      Section 2 granted PREPA’s Board
    of Directors, in its capacity as trustee for the Retirement System,
    "any power or function of the Board of Trustees that may be
    necessary or convenient to carry out the urgent purposes mentioned
    above."      
    Id. at 4-5
    .         Section 2 also acknowledged that the
    Retirement System's sitting Board of Trustees reserved authority
    to "exercis[e] the other functions corresponding to it in the daily
    administration of the Retirement System, provided that it may not
    impede . . . the      approval    and/or      publication     by   the   Board    of
    Directors      of   the   Retirement        System's   actuarial     reports     or
    financial statements."        
    Id. at 5
    .
    The Order also described when it would terminate: by its
    own   terms,    the   Order   would    no    longer    be   effective    upon    the
    Retirement     System's    issuance     of    their    actuarial    reports      and
    financial statements "for the corresponding fiscal years, up to
    and including fiscal year 2017," the FOMB's certification of a
    revised fiscal plan for PREPA, and the FOMB's certification of a
    budget for PREPA for fiscal year 2019.             
    Id. at 5
    .
    On March 27, 2018, José Ramón Rivera-Rivera, President
    of the Retirement System's Board of Trustees prior to the Order's
    issuance, filed a complaint in the Puerto Rico Court of First
    Instance.      The complaint sought a permanent injunction rendering
    1The AAFAF is a defendant in this suit in its capacity as a
    representative for the Commonwealth of Puerto Rico and PREPA.
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    the Order and actions taken under it void.                The other plaintiffs
    were the Retirement System, the Retirement System's Board of
    Trustees (in its organizational capacity), and members of the
    Retirement    System's   Board     of     Trustees.   2     We   refer   to   the
    plaintiffs,    collectively,      as    the    "Retirement       System."     The
    complaint also sought a declaration that the Retirement System is
    a trust "separate and independent of" PREPA and that the Order is
    an undue "interference with the independence and powers of the
    Retirement    System."    The     suit     named   as     the    defendants   the
    Commonwealth of Puerto Rico, Governor Rosselló Nevares, PREPA, and
    President of PREPA's Board of Directors, Ernesto Sgroi Hernández.
    We refer to the defendants, collectively, as "the defendants."
    The   FOMB,    acting    pursuant      to   
    48 U.S.C. § 2166
    (a),
    removed this action to the Title III Court.                 It did so on the
    ground that the injunctive and declaratory relief requested by the
    Retirement System would "interfere with the [FOMB's] ability,
    2 The members of the Retirement System's Board of Trustees
    who initially filed suit were Ralphie E. Dominicci Rivera, Ángel
    R. Figueroa-Jaramillo, and Ernesto Zayas López.    These members
    were elected to their positions by PREPA employees. The Second
    Amended Complaint names as plaintiffs Juan Carlos Adrover, Sammy
    Rodríguez, and Alvin Román, members of the Board who were
    designated as such by PREPA management.
    One peculiarity in this case is that José Ortiz, Executive
    Director of PREPA's Governing Body, also served as a member of the
    Retirement System's Board of Trustees. He did not consent to join
    the action as a plaintiff but was named as a defendant in the
    Second Amended Complaint because plaintiffs viewed him as an
    indispensable party to the action.
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    among other things, to restructure PREPA by placing the Retirement
    System and its assets . . . outside of the [FOMB's] purview."3
    The Retirement System filed in response a motion to remand the
    case to the Court of First Instance.   The motion was denied.    In
    re Fin. Oversight & Mgmt. Bd. for P.R., Title III Case No. 17-BK-
    3283, Adv. No. 18-AP-0047, 
    2018 WL 8130850
    , at *5 (D.P.R. Oct. 12,
    2018).
    In November 2019, Governor Wanda Vázquez Garced issued
    Executive Order No. 2019-060, which operated to formally withdraw
    the executive order that is our focus here.   The Retirement System
    then filed a Second Amended Complaint in January 2020, which sought
    relief in the form of "a Declaratory Judgment decreeing that [the
    Order] was null and void and therefore the actions that were taken
    based on [it] are equally null and void."4
    The FOMB moved to dismiss the Retirement System’s Second
    Amended Complaint for lack of subject matter jurisdiction on
    mootness grounds, due to the expiration and formal rescission of
    the Order.   See Fed. R. Civ. P. 12(h)(3).     The Title III Court
    3 The FOMB is a defendant in this suit in its capacity as
    representative for the Commonwealth of Puerto Rico and in its
    capacity as a representative for PREPA. See 
    48 U.S.C. § 2175
    (b)
    ("The [FOMB] in a case under [Title III] is the representative of
    the debtor.").
    4 The FOMB alleges, and the Retirement System does not
    dispute, that Exec. Order No. 2018-012, by its own terms, was no
    longer in effect as of June 2019.
    - 9 -
    determined    that     the   Retirement      System   had    demonstrated    the
    existence of a substantial controversy, premised on the "disputed
    validity of acts taken pursuant to" the Order.              See Rivera-Rivera,
    Adv. Proc. No. 18-AP-0047-LTS (slip op. at 9) (D.P.R. July 30,
    2020).    However, the Title III Court held that the Retirement
    System   failed   to    show   that    its   requested      declaratory   relief
    presented a controversy of sufficient reality or immediacy.                  
    Id. at 11
    .
    Noting that the reality or immediacy of a plaintiff's
    requested relief is shown where "it takes on a conclusive character
    and 'settle[s] some dispute which affects the behavior of the
    defendant[s] towards the plaintiff[s],'" 
    id.
     at 10 (citing In re
    Fin. Oversight & Mgmt. Bd. for P.R. ("Aurelius Capital Master II"),
    
    919 F.3d 638
    , 646 (1st Cir. 2019)), the Title III Court explained
    that the dispute lacked "sufficient immediacy and reality" to give
    the relief sought by the Retirement System -- the "right to
    evaluate,    intervene,      modify,    amend    or   ratify"   the   financial
    statements issued by the PREPA Board of Directors while the Order
    was in effect -- and that it failed to show what past "specific
    actions in mind that [the Retirement System] hope[d] to eschew, or
    that they intend[ed] to modify,"               
    id. at 11-12
    .     The Title III
    Court held accordingly that the case was moot and that it lacked
    subject matter jurisdiction under the Declaratory Judgment Act, 
    28 U.S.C. § 2201
    .       
    Id. at 12
    .
    - 10 -
    Appellants filed a timely notice of appeal.                  We have
    jurisdiction to hear this appeal under 
    28 U.S.C. § 1291
     and 
    48 U.S.C. § 2166
    (e)(2).
    II.
    The threshold question on appeal is "whether the facts
    alleged,   under    all    the   circumstances,      show   that    there   is   a
    substantial controversy, between parties having adverse legal
    interests, of sufficient immediacy and reality to warrant the
    issuance of a declaratory judgment."           See Md. Cas. Co. v. Pac.
    Coal & Oil Co., 
    312 U.S. 270
    , 273, 
    61 S.Ct. 510
    , 
    85 L.Ed. 826
    (1941); see also Town of Portsmouth v. Lewis, 
    813 F.3d 54
    , 59 (1st
    Cir. 2016).5    Our review is de novo, see Aurelius Cap. Master II,
    919 F.3d at 644, and because the case before us arises under the
    Declaratory Judgment Act, the burden is on the Retirement System
    to make the required showing, see Town of Portsmouth, 813 F.3d at
    59.
    We may assume that the Retirement System could have met
    its   burden   to   make   that   showing    while    the   Order    was    still
    operative, based on the fact that the Order displaced the Board of
    Trustees with respect to some of its functions and limited the
    5The parties do not dispute the existence of a substantial
    controversy. We thus affirm the Title III court's determination
    that "[t]he disputed validity of acts taken pursuant to the
    Executive Order is a substantial controversy." Rivera-Rivera, No.
    18-AP-0047-LTS (slip op. at 9) (D.P.R. July 30, 2020).
    - 11 -
    trustees'   ability   to   fulfill   their   fiduciary   duties   to   the
    Retirement System.     But, the Order expired by its own terms in
    June 2019, upon the certification of PREPA’s Fiscal Plan by the
    FOMB.   It was then later rescinded formally by an executive order
    issued by Governor Wanda Vázquez Garced on November 24, 2019.          See
    P.R. Exec. Order 2019-060 (Nov. 24, 2019).          Thus, there is no
    longer any basis for concluding that there is the requisite type
    of controversy, insofar as the basis for showing as much is
    premised on an ongoing displacement brought about by the Order.
    See Town of Portsmouth, 813 F.3d at 58-60 (finding the case moot
    because the state legislature prohibited the tolls in dispute).
    The Retirement System nevertheless contends that it has
    suffered continued harm from the Order -- even after it ceased to
    be operative -- and that, as a result, this Court should find the
    existence of a controversy of sufficient immediacy and reality
    despite the Order's expiration and rescission.           The Retirement
    System nowhere explains, however, what harm is ongoing -- and
    fairly traceable to the now-expired Order -- that is presently
    causing them injuries that could give them standing to seek
    declaratory relief.
    The Retirement System does allege ongoing harm resulting
    from the Order's grant of authority to PREPA's Board of Directors
    based on its understanding that the financial statements issued by
    the Board, now binding on the Retirement System, "do not reflect
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    the decisional power that [the Retirement System's trustees have]
    over the Retirement System."   But, as the defendants note and the
    Title III Court concluded, the Retirement System fails to "explain
    what being ‘bound’ practically means or how it is causing them
    concrete injury."
    For example, the Retirement System does not allege that
    the information disclosed in the financial statements issued under
    the Board of Directors' authority in any way misrepresents the
    Retirement System's financial position.    Nor does it allege that
    the financial statements have resulted in harm to PREPA retirees
    or other beneficiaries of the pension plan.   Indeed, in its Second
    Amended Complaint, the Retirement System alleges that the harm
    resulting from the Order and actions taken under it "cannot be
    effectively quantified" and suggests that its filing of the action
    before us was spurred by a "generalized state of uneasiness"
    experienced   by    the   "approximately   12,268   retirees   and
    approximately 6,227 active employees in the [Retirement System]."
    Accordingly, even if the Order has some ongoing effect
    on the Retirement System's expectations as to its relationship
    with the Commonwealth, FOMB, and PREPA, the Retirement System has
    failed to show that any effect constitutes a concrete injury for
    purposes of the "case or controversy" requirement of Article III
    of the U.S. Constitution.   See Spokeo, Inc. v. Robins, 
    136 S.Ct. 1540
    , 1550, 
    194 L.Ed.2d 635
     (2016) ("Robins cannot satisfy the
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    demands of Article III by alleging a bare procedural violation.
    A violation of one of the FCRA’s procedural requirements may result
    in no harm."); Gov. Wentworth Reg’l Sch. Dist. v. Hendrickson, 201
    F. App’x 7, 9 (1st Cir. 2006).        Thus, the Retirement System fails
    to show that the Title III Court erred in dismissing the action on
    mootness grounds.
    III.
    The Retirement System does separately contend that, even
    though the Order is no longer in place -- and even if there is no
    live, immediate controversy as a result -- the Second Amended
    Complaint still is not moot under certain well-known exceptions to
    the mootness doctrine.           It thus contends that, insofar as an
    exception applies, there is an "immediate and real" controversy
    that would satisfy the Declaratory Judgment Act's requirements.
    We may assume that a showing that one of these exceptions applies
    would have the consequence that the Retirement System posits.
    But, as we will explain, none of the exceptions to which the
    Retirement System directs our attention is applicable here.
    The    Retirement      System   first    invokes   the    "voluntary
    cessation"    exception     to     mootness,      which   provides     that    a
    defendant's     voluntary     cessation      of    putatively      illegal    or
    unconstitutional conduct will not moot a case, unless the defendant
    "meets 'the formidable burden of showing that it is absolutely
    clear the allegedly wrongful behavior could not reasonably be
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    expected   to   recur.'"      American   Civil   Liberties   Union   of
    Massachusetts v. U.S. Conference of Catholic Bishops, 
    705 F.3d 44
    ,
    55 (1st Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw
    Envtl. Servs. (TOC), Inc., 
    528 U.S. 167
    , 190, 
    120 S.Ct. 693
    , 
    145 L.Ed.2d 610
     (2000)).       The Retirement System contends that the
    defendants have failed to show that unlawful interference with its
    independence will not occur the "next time the [Fiscal Oversight
    and Management Board] or the Commonwealth deems it necessary for
    PREPA to comply with the Oversight Board's requirements regarding
    the certification of PREPA's Fiscal Plan and Budget."
    The Retirement System did not make this argument to the
    Title III Court, however, and "[i]t is a well-settled principle in
    this circuit that 'a party . . . may not raise on appeal issues
    that were not seasonably advanced (and, hence, preserved) below.'"
    Toren v. Toren, 
    191 F.3d 23
    , 29 (1st Cir. 1999)(second alteration
    in original)(quoting Daigle v. Me. Med. Ctr. Inc., 
    14 F.3d 684
    ,
    687 (1st Cir. 1994)).   But, even if we were to overlook the problem
    with the Retirement System raising this argument as late as it
    has, we do not find it to be persuasive, given that the Order
    "expired by its own terms, according to criteria adopted before
    [the Retirement System] ever filed this litigation."          There is
    thus no basis on this record for finding that the concerns about
    manipulation to evade review that underlie this exception to
    mootness are implicated.     ACLU of Mass., 705 F.3d at 55.
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    The Retirement System next argues that the "capable of
    repetition yet evading review" exception to mootness applies here.
    We may apply this exception where a plaintiff shows "(1) the
    challenged action was in its duration too short to be fully
    litigated prior to cessation or expiration, and (2) there was a
    reasonable expectation that the same complaining party would be
    subject to the same action again."             Weinstein v. Bradford, 
    423 U.S. 147
    , 149 (1975); see also Davidson v. Howe, 
    749 F.3d 21
    , 26
    (1st Cir. 2014).       The Retirement System has failed to satisfy the
    first requirement, as it offers no explanation for why the Order
    did not remain operative long enough for a challenge to its legal
    validity to be fully litigated, given that the Order was in effect
    for   fifteen    months     until    its   expiration.       See   Gulf   of   Me.
    Fisherman's     All.   v.   Daley,   
    292 F.3d 84
    ,   89    (1st   Cir.   2002)
    (considering "the actual, as opposed to theoretical" life of a
    regulation "and the historical fact that review is indeed possible"
    as part of its analysis of whether the challenged regulation "was
    too short in duration to be fully litigated before its expiration")
    (internal quotation marks omitted).
    The Retirement System does point us to delays beyond its
    control that it contends prevented this case from being fully
    litigated before the Order expired.               But, the record does not
    provide support for rejecting the Title III Court's contrary
    reading of the record.          See Fisherman's All., 
    292 F.3d at
    89
    - 16 -
    ("[A]ppellant    never       requested     expedited       review    during     this
    litigation.      On    the    contrary,    both    parties     sought       numerous
    extensions of time for filing the administrative record, motions,
    and briefs.     As a result of these delays, we cannot know whether
    [appellant]      might       have     obtained      a      judgment      on      its
    challenges . . . .").
    Finally,       the    Retirement        System     argues     that     the
    "collateral consequences"           exception to mootness           applies here.
    This exception has been applied traditionally in criminal cases
    because a federal court can, as a general matter, "presume that
    [collateral consequences] exist" stemming from an unconstitutional
    conviction.   See Sibron v. New York, 
    392 U.S. 40
    , 55-56, 
    88 S.Ct. 1889
    , 
    20 L.Ed.2d 917
     (1968).          Even if we assume that the exception
    may apply outside of the criminal conviction context, see United
    Steel Paper & Forestry Rubber Mfg. Allied Indus. & Serv. Workers
    Int'l Union AFL-CIO-CLC v. Government of the Virgin Islands, 
    842 F.3d 201
    , 209 (3d Cir. 2016), the problem here is that the
    Retirement    System     points     to    the   same    inchoate      and     barely
    articulated consequences that we found too diffuse and unformed to
    supply a basis for finding a substantial controversy of sufficient
    immediacy now that the Order is no more.                Thus, this ground for
    overcoming mootness fails as well.
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    IV.
    The Title III Court correctly held that the plaintiffs
    failed to show the existence of a justiciable case and controversy.
    We thus affirm the Title III Court’s dismissal of the case for
    lack of subject matter jurisdiction.
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